By Shriya Kali Chittapuram
SAN FRANCISCO, CA – A three-judge panel Monday affirmed the dismissal of an ongoing historical case involving Palestinians, Palestinian-Americans, and Human-Rights groups who have charged defendants President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin for failure to prevent Israel’s alleged ongoing genocide of Palestinians in Gaza.
According to the DCIP (Defense for Children International – Palestine) Appellate opinion, the judges’ decision led to the dismissal of the case broadcast back in January, with the reasoning being, “Israel’s conduct ‘plausibly’ constitutes genocide and implored the Biden administration to examine its ‘unflagging support’ for Israel’s siege against the Palestinians in Gaza.”
Even though conduct is alleged to breach the domestic and international law prohibition against aiding and abetting the intentional destruction of a people—genocide for instance, the panel agreed with the lower court that there is no role for the courts in reviewing executive branch conduct that touches on foreign policy under the “political question doctrine.”
“In a deeply troubling ruling that ignores both the legal framework put in place after World War II to ensure that a people is not targeted for destruction because of their identity and the horrifying facts on the ground in Gaza, the three-judge panel effectively gives the president a blank check whenever foreign policy is invoked, contrary to Supreme Court precedent and binding domestic and international law,” stated Center for Constitutional Rights (CCR) Senior Staff Attorney Katherine Gallagher.
“On the heels of Trump v. United States, this stunning abdication of the court’s role to serve as a check on the Executive even in the face of its support for genocide should set off alarm bells for all,” added Gallagher.
According to the CCR, the dismissal of this extraordinary case featured rare testimonies from Palestinian and Palestinian-American victims of Israel’s war against the Palestinian population in Gaza.
CCR charged, with U.S. support, Israel has killed an estimated 38,650 people in Gaza, including at least 14,000 children (with an additional 20,000 Palestinian children in Gaza estimated to be lost, disappeared, detained, buried under the rubble, or in mass graves), injured nearly 90,000 Palestinians…
“…forcibly displaced two million all since Oct. 8, and inflicted conditions of life leading the entire population of Gaza to be at the brink of famine, as the genocidal assault – and the flow of U.S. weapons – continues.”
“This decision is mind boggling and, frankly, scary. It is just unfathomable, while we count our dead, witness the total obliteration of Gaza – aided by our own government,” said Waeil Elbhassi, a plaintiff in the case.
“As the death toll keeps rising and we see nonstop images of carnage during this live streamed genocide, the court washes its hands of our case. We turned to the law to help stop the horror, and the court chose to do nothing. We are beyond disappointed. We have no choice but to continue to fight for our people. Our very existence is at stake,” Elbhassi added.
According to the CCR, government lawyers did not dispute that Israel’s assault on Gaza constitutes a genocide. Rather, they invoked the “political question” doctrine, instead saying that “foreign policy” decisions—even a decision to enable genocide by providing weapons used to kill tens of thousands of Palestinians—are not subject to judicial review.
The plaintiffs’ lawyers, from the CCR and Van Der Hout LLP, countered, “The political question doctrine cannot be invoked when policy decisions cross over into violations of the law – a line that courts must enforce under our system of separation of powers.”
Indeed, the lawyers said, “Throughout U.S. history, from the founding-era to the post-9/11 ‘enemy combatant’ cases, courts have repeatedly determined whether foreign policy decisions violated domestic and international law, and they must do so in this case.
“Aiding and abetting genocide can never be a mere policy choice,” the lawyers continued.
Supported by evidence including confirmations of the continued flow of weapons with no “red lines” by the Biden administration and an affidavit from former State Department official Josh Paul, plaintiffs also pointed out the sheer amount of U.S. support, both historically and since October 7.
Plaintiffs noted the tens of thousands of bombs and precision-guided munitions as well as over a million rounds of small arms ammunition makes Israel’s capacity to carry out the “genocide” manifestly dependent on the United States.
“We tried every recourse to save our families and our people from this genocide: petitions, protests, lawsuits – and this administration has ignored us and supported this genocide,” said Basim Elkarra, another plaintiff in the case. “While disappointed in this decision, we will continue to hold Biden and this administration accountable, if not legally, then politically.”
The lawsuit was in November, and asked for the court to enjoin the Biden administration from providing weapons and other forms of support for Israel’s genocide in Gaza.
Then in January, Federal Judge Jeffery S. White largely endorsed the factual case put forward by the plaintiffs, and his statement that Israel’s assault was a plausible case of genocide echoed the historic ruling by the International Court of Justice (ICJ).
The ICJ has since issued two more sets of provisional measures in the South Africa v. Israel genocide case and a ruling in a related case that warns states, like the United States, not to breach their obligations to prevent genocide when supplying Israel with arms.
Meanwhile, the International Criminal Court has filed applications for arrest warrants, including against Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for international crimes committed against Palestinians in Gaza since October 8.
The CCR concluded the three-judge panel reached its decision despite the arguments in eight amicus briefs—from legal scholars, former diplomats and servicemembers, human rights groups around the world, experts on the use of starvation as a tool of war, and others—filed in support of the appeal.
